Republicans are gearing up to lock in their remake of the judiciary under President-elect Donald Trump and a new Senate majority, including potentially installing several more conservative Supreme Court justices.
Having already picked three Supreme Court justices in his first term — who were critical in overturning abortion rights — Trump will have appointed a majority of the court if he lands two more.
Trump made the Supreme Court and lower courts priorities in his first term. He worked with Senate Republicans to help reshape the entire judiciary by naming 234 federal judges.
Republicans will hold at least 52 Senate seats, having flipped Democratic-held seats in West Virginia, Montana and Ohio. The number may grow, with several other races still too close to call. Either way, they’ll have power to confirm judges and justices with simple majorities.
Conservatives are prepared for Supreme Court retirements, with the most attention on Justice Samuel Alito, 74.
“I imagine that Justice Alito will want to get the hell out of D.C. as quickly as possible,” said Mike Davis, the Senate GOP’s former chief counsel for nominations, who runs the conservative Article 3 Project advocacy group. “That’s who I would predict.”
The top candidates to become the next Senate majority leader — John Thune, R-S.D., and John Cornyn, R-Texas — both plan to prioritize confirming judges under Trump.
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“Come January, we must be ready to confirm his nominees,” Cornyn said while mentioning other priorities like passing a budget, extending the Trump tax cuts and pursuing tougher border policies.
A source close to Thune said that “confirming conservative judges will certainly be a priority,” calling Trump’s first term a “great” model to look to.
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When it comes to the Supreme Court, observers have their eyes on the two oldest conservatives. Justice Clarence Thomas, who has served on the court since 1991, will turn 80 by the next presidential election in 2028. He is close to being the longest-serving justice of all time, a mark he would reach that year. Alito, who wrote the 2022 ruling that overturned Roe v. Wade, has served since 2006 and turns 78 ahead of the next presidential election.
Both are conservative stalwarts who are in some ways more aligned with the Trump wing of the GOP than the three justices Trump appointed in his first term. They have also both been subject to hostile scrutiny in recent years over allegations of ethical lapses.
“I certainly expect there will be a vacancy, quite possibly two,” said John Malcolm, a lawyer at the conservative, Trump-allied Heritage Foundation who was among those who helped compile a list of potential high court nominees for Trump when he first ran in 2016.
A Trump-appointed Supreme Court majority
If Trump gets two appointments, he would be the first president since Franklin D. Roosevelt to have appointed a majority of justices to the court, a milestone he could reach as soon as the summer of 2026 depending on the timing of retirements.
Trump’s previous appointees — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — have been instrumental in shifting the court further to the right with a 6-3 conservative majority. All three voted to overturn abortion rights and regularly joined rulings invalidating Biden administration actions.
Davis, a pugnacious Trump supporter known for throwing rhetorical flames at Trump's critics, called his three justices the “most consequential accomplishment of his first term.”
And there may be fresh criteria this time.
“President Trump will build on that with even more bold and fearless judicial picks,” he said. “It means judges who will follow the law and don’t care what the liberal media says about them.”
If Thomas or Alito steps down, Trump is likely to look to the dozens of appeals court judges he appointed in his first term to find candidates to replace them, some experts believe.
Trump’s former White House counsel Don McGahn, who played a key role in judicial selections in the first term, spoke at a recent event about the importance of justices’ having “courage to do the job you’ve been given.” He added that some of Trump’s potential Supreme Court nominees are “certainly more strident” than earlier generations of conservative judges were.
And among Democrats, anxieties are running high about whether Justice Sonia Sotomayor, 70, a lifelong diabetic, will hang on for four more years. Some Democrats had openly wondered this year whether she should step down and assure a liberal replacement, to avoid a repeat of what happened to former Justice Ruth Bader Ginsburg, who died during Trump's first term, which enabled him to swing the court to the right by picking Barrett.
“Sonia Sotomayor needs to retire right now,” a Democratic official working in the Biden administration said within hours of NBC News’ projecting that Trump had won the presidency.
If she does, there’s no rule prohibiting Democrats from confirming a potential Sotomayor successor in the lame-duck session. They wouldn’t need any Republican votes to do it. But some on the left who are familiar with the Senate confirmation process point out there is no guarantee that a replacement for Sotomayor would be confirmed in time.
“I don’t think they could realistically confirm a replacement, and it would be risky,” said Alex Aronson, a former Democratic Senate staffer who now runs Court Accountability, a liberal legal group.
Sotomayor didn’t respond to a request seeking comment on her plans, relayed via a Supreme Court spokeswoman.
Chuck Grassley likely to be Judiciary chairman
Sen. Chuck Grassley, R-Iowa, told NBC News in September he would seek to return as Judiciary Committee chairman if Republicans retake the majority. Grassley has seniority on the committee, which determines what judicial nominations the full Senate votes on.
Ahead of the election, numerous Republican senators on the Judiciary Committee told NBC News they expected at least one, if not more, Supreme Court retirements should Trump prevail and their party win the Senate. Sen. Josh Hawley, R-Mo., said he believes the GOP would look to find more justices like Thomas or Alito, especially if they’re the ones being replaced.
Unlike in 2016, Trump hasn’t issued a public list of potential Supreme Court nominees. But the task of identifying potential nominees is made easier for him because he now has a deep bench of lower court judges he appointed to pick from.
“He has the luxury that he appointed several outstanding judges who have now been judges for a number of years, so they have a judicial track record,” said Malcolm of the Heritage Foundation.
Among them are Judge Andrew Oldham of the New Orleans-based 5th U.S. Circuit Court of Appeals, who was a law clerk for Alito. Another is Judge Amul Thapar of the Cincinnati-based 6th U.S. Circuit Court of Appeals. He was Trump’s first appeals court nominee in 2017. Vice President-elect JD Vance’s wife, Usha Vance, clerked for Thapar when he was a district court judge.
Other names conservative legal insiders frequently mention as potential Supreme Court nominees include Judge James Ho of the 5th Circuit appeals court, Neomi Rao of the U.S. Court of Appeals for the District of Columbia Circuit and Judge Patrick Bumatay of the San Francisco-based 9th U.S. Circuit Court of Appeals. Trump appointed all of them to their current positions.
There are 47 vacancies on the lower courts — trial courts and the 13 influential courts of appeal — that President Joe Biden hasn’t filled.
But waiting in the wings are dozens of Republican-nominated judges who in January would be eligible to retire on full pay but were most likely delaying doing so until there was a Republican president who could appoint their successors.
There are 83 such judges, according to Russell Wheeler, a scholar at the nonpartisan Brookings Institution who tracks judicial nominations.
Once Trump takes office, he will probably be able to fill most of those slots.
GOP won't pursue Supreme Court ethics rules
Trump already transformed the federal courts in his first term, appointing 54 appeals court judges and 174 district court judges, many of whom are closely linked with the Federalist Society, a conservative legal group. Even putting aside the Supreme Court, those judges have had a major role to play in pushing the law to the right.
Biden has made his own mark on the judiciary, appointing 210 district and appeals court judges in total, including 44 appeals court judges, falling just short of Trump’s total. His appointees have been substantially more diverse than Trump’s, and he has also picked some with experience as public defenders or civil rights lawyers.
To what extent Trump will follow the road map from his first term, in which he deferred to conservative lawyers like McGahn and legal activist Leonard Leo on judicial appointments, remains to be seen. Neither McGahn nor Leo responded to requests for comment on whether they will offer their advice this time around.
In recent years, the Democratic-led Senate has sought to impose new ethics rules and organize inquiries into reports about potential corruption at the Supreme Court, only to get stymied by Republicans who used the filibuster to block the bills and prevent subpoenas from being enforced.
Outgoing Senate Minority Leader Mitch McConnell, R-Ky., who shepherded Trump’s three justices through the chamber, said those efforts are likely to end under a GOP-led Senate.
“We’ll quit beating up the Supreme Court every time we don’t like the decision they make,” he said
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